By George Coucounis
The Family Court may issue an order by consent or otherwise against both or any of the spouses in relation to the settlement of their property disputes, ordering the one to make a payment to the other and the latter to simultaneously transfer to the former an immovable property. By doing so, the spouses resolve the property issues between them regarding their contribution to the increase of their movable and immovable property acquired in view and during their marriage. Such an order is drawn up by the Registrar of the Court and should include an endorsement stating that if the spouses or any of them neglect to obey the order, by the time therein limited, they will be liable to be arrested and to have their property sequestered. The wording of the order and the endorsement must be clear and not vague, the time for the execution of the order must be specified therein and each spouse to understand it, leaving no room for ambiguity. Moreover, the order needs to be served upon the parties prior to the time specified for its execution in order for them to comply with it.
The aforesaid are essential, since in the event of disobedience to the order, the innocent party will have to apply to the Court and prove that the other spouse has not complied with the order. The procedure before the Court is considered as quasi criminal and the applicant must prove the disobedience, otherwise such an application will fail. The Court dealing with the application will examine the order, whether it is clear or not and if the time for its execution is specified therein, as well as if the requirement for the endorsement is satisfied and whether it was served prior to the time of its execution. Therefore, the innocent party should observe the order carefully before applying to the Court and if the order is not clear or the time is not specified, he should apply for its amendment before proceeding with an application for disobedience. The responsibility for the wording of the order is not upon the Court, but upon the parties to such a proceeding. So, it is their obligation to care for the wording of the order to be proper, so that to avoid time and inconvenience in the event of non compliance by the other spouse.
In a recent judgement issued by the Supreme Court in relation to a property dispute between ex spouses, the Court did not agree with the Family Court that the order was not clear regarding the time for its execution. According to the order, the wife had to deliver the possession of the matrimonial house to the husband until 30.7.07 the latest, something which she did not do. The husband applied to the Family Court for disobedience in order to make the wife comply. The Family Court considered that the aforesaid provision about the time of the execution was not clear and that there was ambiguity regarding the time specified in the order for the delivery of the house to the husband; thus, it dismissed the application with costs. The Supreme Court disagreed with this decision, stating that there was contempt of the order committed by the wife, because her omission constituted a breach of the order. It referred to English precedents, where it is stated that although persons are under a duty to comply strictly with the terms of an order, the Court will only punish a person for contempt upon adequate proof of the following: (a) it must be established that the terms of the order are clear and unambiguous, (b) it must be shown that the defendant has had proper notice of such terms, and (c) there must be clear proof that the terms have been broken by the defendant. In the aforesaid case, the words written in the order “until 30.7.07 the latest” were simple, clear and understandable to the middle man and no doubt could have been created to the wife to comply with her obligation under the order. Consequently, she was found guilty of contempt of the Court order and she was asked to give reason for mitigation before imposing punishment to her.
George Coucounis is a lawyer specializing on the Immovable Property Law, Leading Partner in George Coucounis LLC based in Larnaca - Cyprus
www.coucounislaw.com - E-mail: firstname.lastname@example.org - Tel: +357-24818288.